Kane v. Ferguson

Decision Date27 March 1945
Docket NumberCase Number: 31692
Citation157 P.2d 194,195 Okla. 292,1945 OK 104
CourtOklahoma Supreme Court

¶0 1. JUDGES--Authoprity for parties to agree upon judge pro tempore to try cause.

Section 9, art. 7, Constitution, as well as 22 O. S. 1941 § 572, provides that in the event any judge shall be disqualified from trying any cause in his district, the parties to such cause may agree upon a judge pro tempore to try the same.

2. SAME-APPEAL AND ERROR-Objections to authority of special judge waived if not raised at trial.

The general rule is that objections to the authority of a special or substitute judge may be, and are, waived where no question is raised at the trial as to the power and authority of such special judge to hear and determine the case, or as to the regularity of his selection.

3. HOMESTEAD--Judgment not void because outside of issues where pleadings authorized court to determine whether land involved was family homestead and whether spouse not joining in deed had any interest therein that would invalidate deed.

A judgment is not void where, in an action to recover possession of real estate based upon an allegation that the property involved is the family homestead and that defendant holds possession under a deed claimed to be invalid because the same was executed by the owner alone, while married, and was not joined in by the spouse of such grantor, and the defendant answers by general denial, the question of whether the premises are the family homestead is put in issue so as to authorize the trial court to determine whether the land was the family homestead and whether the spouse not joining in the deed had any interest therein such as would invalidate the deed in question.

4. COURTS-Statutory authority of sheriff to adjourn court from day to day for not to exceed two days where judge failed to appear.

The provisions of 12 O.S. 1941 § 55, while in force, authorizing the sheriff to adjourn court from day to day for not to exceed two days where the judge of the court failed to appear at the time and place appointed for holding his court, had application only to the opening of the term of court at the time appointed by law. After the term of court was once properly opened, the power to adjourn or recess the court rested entirely with the judge. Any attempt by the sheriff to recess or adjourn court to a time certain was a nullity.

5. JUDGES-Powers of special judge.

For the purpose of the trial of a case for which a special judge is selected, such special judge has all the powers of a regular judge.

Appeal from District Court, Seminole County; Tal Crawford, Judge.

Motion by Cora Kane to vacate judgment rendered in favor of Walter Ferguson. Motion overruled, and movant appeals. Affirmed.

O. E. Swan, of Chicago, Ill., and H. L. Smith, of Tulsa, for plaintiff in error.

B. F. Davis, J. A. Patterson, and W. M. Haulsee, all of Wewoka, for defendant in error.


¶1 This is an appeal from an order overruling a motion to vacate a judgment alleged to be void. The judgment sought to be vacated was rendered in the action hereinafter detailed.

¶2 On December 28, 1920, Sulpa Kane and Cora Kane, husband and wife, commenced an action in the district court of Seminole county against Walter Ferguson wherein in a first cause of action they sought to recover possession of a tract of land alleged to be the family homestead of plaintiffs. The basis of their claim was that the husband, Sulpa Kane, had executed a warranty deed purporting to convey said land to defendant and that the wife, Cora Kane, had not joined in the execution of said deed and that defendant held possession under said deed.

¶3 In the second cause of action the plaintiffs pleaded that in the event the court should determine that the deed given by Sulpa Kane conveyed good title to the land, then there was a balance due and unpaid on the purchase price in the sum of $1,350, which plaintiffs prayed be made a lien on the land. Copy of the deed was attached to the petition. It was signed and acknowledged, September 7, 1920, only by Sulpa Kane.

¶4 Defendant answered admitting that on September 7, 1920, plaintiffs were the owners of the land involved, and that the land was the homestead allotment of Sulpa Kane. Defendant pleaded an oral agreement for the purchase of said land, wherein plaintiffs agreed to sell and convey the same to defendant for the sum of $1,500; that there was a prior deed of record from Sulpa Kane to one E. L. Harris, and a valid and subsisting mortgage against the land, all of which was known to plaintiffs; that as a part of the consideration, defendant was to procure a quitclaim deed from Harris and pay off and cause to be released of record the mortgage; that said oral agreement was partly performed in that defendant did procure the quitclaim deed from Harris at a cost of $100, and paid off and caused to be released the mortgage against the land, and that after that was done, there was a balance due plaintiffs of $275; that Sulpa Kane, pursuant to said oral agreement, executed the warranty deed to defendant, with the explanation that his wife, Cora Kane, was sick at the time and would later come in and execute the deed. The answer then pleaded full performance of a contract on the part of the defendant, except for the payment of the alleged balance of $275 on the purchase price, which sum he tendered into court for plaintiffs. By cross-petition defendant sought to have title to the land quieted in him. Reply was by general denial.

¶5 February 9, 1921, an order, reciting that it was upon agreement of the parties, was entered appointing Frank L. Warren referee in the cause, with authority to settle the pleadings and try the issues, make findings of fact and conclusions of law, and report same to the court on or before the next regular term of the court, and that the testimony need not be attached to the report.

¶6 On February 28, 1921, there was signed and filed in the case the following stipulation:

"It is hereby stipulated and agreed by and between the parties hereto that J. W. Bolen is disqualified to try the above entitled cause and that we, the undersigned, representing the respective parties, hereby agree that Frank L. Warren shall act as special judge to try said cause.
"Geo. C. Crump
"J. A. Patterson "C. G. Cutlip."

¶7 On the same day, Frank L. Warren executed and filed in said cause his oath of office.

¶8 On the same day, there was filed in the cause a journal entry of judgment which recited that the cause came regularly on to be heard before Frank L. Warren; that the parties were all present in person and by their respective attorneys and waived a jury and announced ready for trial; and that the court heard the testimony of witnesses and argument of counsel. The journal entry then showed findings that Sulpa Kane executed the warranty deed conveying the land, describing it, to defendant; that said land had never been impressed with the homestead character, and that Cora Kane had no right, title, or interest in or to the same and was not a necessary party to the signing of said deed. There was a further finding that there was a balance due on the purchase price of said land from defendant Ferguson to plaintiff Sulpa Kane, including interest, of $422.25, and that Walter Ferguson was the owner in fee simple of the land, and that upon payment by defendant of said $422.25, plaintiffs would have no further claim in and to said land.

¶9 The decree quieted title to the land in defendant Walter Ferguson and barred plaintiffs, Sulpa Kane and Cora Kane, from claiming any right, title, or interest in the land. Judgment was entered in favor of plaintiffs against defendant Walter Ferguson in the sum of $422.25 and costs. The journal entry was signed: "Frank L. Warren, Special District Judge."

¶10 After signature of the trial judge, appears the following receipt:

"Received of Walter Ferguson Four Hundred Twenty-two Dolars and twenty five cents, in payment of the above judgment, and same is hereby satisfied in full.
"Geo. C. Crump,
"Attorney for Plaintiff."

¶11 On December 3, 1941, 20 years and nine months after said decree and judgment was entered, Cora Kane, widow of Sulpa Kane, filed a motion to set aside said judgment. One of the grounds set out was that the judgment is void on the face of the proceedings. An order was entered December 29th, dismissing said motion, signed by Bob Howell, judge of the district court. Motion to set aside that order was filed December 30, 1941. On the latter date, an amended motion to set aside the judgment was filed. On February 11, 1942, still another amended motion to vacate the judgment (upon which hearing was had) was filed, alleging that the judgment entered February 28, 1921, was void on its face.

¶12 The first ground set out in the amended motion is:

"That said judgment was rendered at a time when this court was not in session."

¶13 The second to sixth grounds, inclusive, set out, in different ways and in different language, that the judgment was not rendered by the district court or by the duly elected and qualified judge thereof, but was rendered by a person who was not a judge of the court and who was not qualified, empowered, or authorized by law to act as a judge of said court. The seventh to ninth grounds, inclusive, assert, in different language, that the judgment was not authorized by the pleadings, was entirely outside the issues made by the pleadings and submitted to the court, and is contrary to the facts charged and admitted in the pleadings.

¶14 February 18, 1942, Bob Howell, district judge, certified in writing his disqualification to hear said motion and set the same for hearing before Honorable Tal Crawford, district judge of Pontotoc county on February 26, 1942. On that day the motion was heard before Honorable Tal Crawford, district judge, resulting in a general finding and order as follows:

"Thereupon, the court having considered said motion and the

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT